A problem at the heart of US democracy

Almost 150 million people voted in last week’s US elections - a remarkable and historic turnout. The people elected Senators, Members of Congress, members of state legislatures and a variety of other office holders. They did not elect the next US president or vice president. Both will be elected on 14 December when 538 largely unknown individuals meet in the US Electoral College, an arrangement dreamed up by the US Constitutional Convention in 1787, writes Dick Roche.

The legitimacy of the Electoral College has been questioned for decades. There have been numerous to reform it. Currently fifteen US states are campaigning its abolition.

When the Constitutional Convention met in 1787 it had no template as to how the leadership of the new republic should be decided.

The Convention members were a patrician group with mixed feelings about democracy. The Father of Constitution” James Madison referred to “the inconvenience of democracy”. Edmund Randolph from Virginia spoke of the need for “sufficient checks against democracy”. Another representative spoke of “the evils we experience flow from the excess of democracy”.

Convention members were concerned that citizens had no knowledge of national figures and that left to their own devices the people could elect a demagog. They did not want Congress electing the President and worried about the balance between the big and small states. To resolve the conundrum a committee was appointed. It produced the idea of an Electoral College, an elite body that would decide who would be the most suitable leader. Other than setting the number of electors to be appointed by each state and details as to when and where the college should meet the US Constitution is silent on how the electors should be chosen or conduct their deliberations.

 

Today’s Electoral College consists of 538 Electors. States are allocated college votes on the basis of their representation in Congress. When the election results are certified the states, with two exceptions, allocate their votes in the College to the political parties on a winner-take-all basis. Following Joe Biden’s victory in California, the state’s 55 Electoral College votes will go to the Democrats. Florida’s 29 votes will go to the Republicans on foot of Trump’s win there. Two states, Maine and Nebraska, allocate two votes to the candidate who wins the popular vote in the state and one to the winner of each electoral district.

The political parties decide on who goes to the College. Electors pledge to vote for their party’s candidates. However Electors can become “faithless electors” and cast a ‘deviant’ vote for any person they wish. Bizarrely, there are no Constitutional or federal provisions dealing with faithless electors. Five states impose a penalty on faithless electors. Fourteen states have legal provisions that allow for the cancellation of a deviant vote and replacement of a faithless elector. Oddly the legislation in nineteen states and Washington DC allows the deviant votes to be counted as cast. The remaining states have no legislation to deal with faithless voters.

As the 1960s Civil Rights Movement was casting light on America’s flawed political structures Senator Birch Bayh, an Indiana Democrat, launched a campaign to abolish the College. He argued that Americans could not “proudly beat our chest and proclaim ourselves to be the world’s greatest democracy and yet to tolerate a presidential electoral system in which the people of the country do not vote for the President”.

Bayh’s proposal received overwhelming support in the US House of Representatives was endorsed by President Nixon and had the support of many states but like all earlier reform attempts it failed. The proposals were killed off by a segregationist filibuster in the US Senate.

The 2000 and 2016 US presidential elections pulled the spotlight back on the Electoral College.

In 2000 a controversial recount of votes in Florida went to the US Supreme Court. The recount, which risked delaying certification of the election, was halted by the Court. George W Bush was deemed to have beaten Al Gore. Bush won Florida by 537 votes out of almost 6 million votes cast. As a result he received Florida's 25 Electoral College votes: Gore’s 2.9 million votes counted for nil. When the Electoral College met on 18 December 2000 George W Bush won the US presidency by 5 votes. In the popular vote Gore received half a million votes more than Bushfive

In 2016, the Electoral College was very much back in focus. When the College convened on 19 December 2016 Donald Trump received 304 votes to Hillary Clinton’s 227, the fifth time in US history that a presidential candidate won the White House while losing the popular vote. Winning Michigan, Wisconsin and Pennsylvania three battleground states by the paper-thin margins gave Trump his Electoral College win.

The College made the news for other reasons. In the run up to its meeting a major campaign was launched to persuade Republican electors to break their pledges and vote against Trump. A petition was launched requesting the College to elect Clinton. Republican electors were offered support to break their pledges. Advertisements were run in newspapers. Hollywood personalities made a video calling on Republican electors to vote against Trump. Anti Trump rallies were mounted. Nancy Pelosi’s daughter, a Democrat elector from California demanded that a briefing on Russian interference be given before the College voted. Time Magazine argued that the Electoral College was created to stop 'Demagogues Like Trump'.

Voting in the College further demonstrated the system's flaws. Four Democrat electors from Washington State, where Hillary Clinton had 52.5% voter support ‘went rogue’. Three voted for Colin Powell and the fourth voted for Faith Spotted Eagle, a Sioux elder and environmental campaigner. The four were subsequently fined $1,000 each. Mrs Clinton also lost an elector from Hawaii who voted for Bernie Sanders. Over 62% of Hawaii’s voters supported Clinton.

Two Republican electors from Texas, where Trump won over 52% of the vote, broke ranks. One of these, Christopher Suprun, explained in the New York Times that he would not vote as pledged because he felt that Donald Trump was “not qualified for the office”.

The US Constitution requires that the Electoral College convene to vote for the President and Vice President on “the first Monday after the second Wednesday in December” – 14 December this year. All vote counting, recounts and court disputes must be completed by 8 December.

The rapid rush to roll out vote-by-mail which played a very significant role in getting the Democrat vote out has produced a series of court actions. Where they will lead remains to be seen. Given the sheer scale of the Biden majority it is very hard to see any case playing as central a role as in 2000, only time will tell.

One thing that is likely to happen is that Republicans and Democrats will continue to battle over a fundamentally undemocratic electoral system dreamed up between May and September 1787 and US electoral reform will continue to “play second fiddle” to partisan political advantage.